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Sunday, December 30, 2012

2011 was a watershed year in the politics of Singapore. With the General Elections and Presidential Elections sending strong signals to the ruling PAP and with the empowering effect of social media, the scene was set for an interesting 2012.

Much has happened in the political arena. The PAP would probably place emphasis on the National Conversation as a major political highlight. Most citizens would probably remember this year as the year of sex in politics and the civil service. I am sure there must be plenty of other mainstream and social media perspectives on the year that has just whizzed past us. I don't plan to cover the same ground. Perhaps a survey of Constitutional developments might be of some interest.

From a Constitutional standpoint, this has been an interesting year. There have been some developments in the law and not all of them are positive from the perspective of citizens' rights.

THE HOUGANG BY-ELECTION CASE

This was a case that was waiting to happen. There have been several instances in the past when the ruling PAP has avoided by-elections. Ever since the dramatic loss of the Anson seat to the Workers' Party in 1981, the default mode of the PAP has been to resist any calls for a by-election when a seat became vacant.

Prior to the Hougang by-election case, there was one attempted Constitutional challenge when the Bukit Batok seat fell vacant in 2008 due to the death of Dr Ong Chit Chung. A claim was filed in Court and eventually withdrawn when the claimant (a Bukit Batok resident) decided not to proceed with the case after his lawyer J.B Jeyaretnam passed away. Bukit Batok was part of a GRC and so the legal issues there were slightly different.

When Mdm Vellamma instituted judicial review proceedings in relation to the PM's discretion in calling for by-elections, it is probably true to say that tremendous political pressure fell on the PM's shoulders. In a GRC it was possible for the PM to claim that the other MPs would 'cover' the responsibilities of Dr Ong. But, Hougang is a single member constituency and clearly the PM could not go on a default mode of givng a template response. http://article14.blogspot.sg/2012/02/bye-yaw-and-now-for-by-election.html

The final judgment by the High Court is most unfortunate for the citizens of Singapore and for the status of our country as a democracy. In a highly technical approach to the reading of our Constitution, the High Court ruled that the PM has unfettered discretion in deciding on whether to hold a by-election. I disagree with the Court's reasoning and I have set that out my views here: http://article14.blogspot.sg/2012/12/the-hougang-by-election-case-belated.html

As a direct consequence of the decision, the legal position today is that a vacant Parliamentary seat need not be filled and it can remain vacant till the next general election.

Since Mdm Vellamma lost her case, the AG requested for an order of costs against her. The default mode in the Court is that 'costs follow the event'. That is just lawyers' language for 'legal costs to be paid by the losing party to the winning party.' Incindentally, judges do have discretion to deviate from this norm and this has been done in the United Kingdom. (Our Rules of Court are modelled on the English Rules.)

In a landmark ruling the same High Court judge that dismissed Mdm Vellamma's case found in favour of Mdm Vellamma on the costs issue. As her case involved a matter of public interest, the Court saw it fit to rule that no costs would be payable even though she lost the case.

As a consequence of this ruling, Singaporeans have been given the hope that they can safely proceed with judicial review on matters of general public interest and will not be penalised in costs if they lose the case eventually.

THE IMF LOAN CASE

There is something seriously wrong about the politico-legal order in our country when we have an official rationale for the existence of an Elected President (as an additional check against potential Executive abuse of the reserves) and at the same time a rather cavelier attitude on the government's part when it comes to giving out loans to foreign institutions.

Most observers reading our Constitution would walk away with the impression that any loan given by our government to a foreign entity is required to be subject to Presidential scrutiny. But, what appears logical to an ordinary individual can often be seen very differently by lawyers. This was one such instance. Though personally I am in favour of subjecting loans by the Singapore government to Parliamentary scrutiny (at the very least), the truth is that the High Court judgment in this case is one that is, at least, consistent with the background to Art 144 of the Constitution. I would have preferred a different approach by the Court by relying on the need for restrictive interpretation of the Constitution when it comes to Executive powers so that the Rule of Law can be preserved.

Today, as a result of the IMF loan case, our government needs to seek Presidential approval for the giving of a guarantee and the raising of a loan. But, there is no need for such approaval for the giving of a loan and the raising of a guarantee.

Another issue arising out of the High Court's decision in this case concerns 'locus standi'. The Court has ruled that the applicant Kenneth Jeyaretnam had no locus standi to bring this claim because the claim was in relation to a public right and the claimant had to show that he suffered some special damage. This is effectively a bar on any future claim by a citizen alleging any breach of Article 144. http://article14.blogspot.sg/2012/10/the-day-constitution-died-again.html

The effect of this case is that in future, the Executive might breach Article 144 by raising a loan or giving a guarantee without Presidential or Parliamentary scrutiny and citizens would be left without legal recourse.

THE GAY RIGHTS CASE

Tan Eng Hong v AG as decided by the Court of Appeal represents a significant postive step in the interpretation of our Constitution. At the present stage of the proceedings, there hasn't been any final determination on the Constitutionality of s.377A of the Penal Code. But, the Court of Appeal has made two rulings of significance.

It is now clear that all statutes that violate the Constitution can be declared to be void and it does not matter whether the statute existed prior to the Constitution.

The second significance of this case is that the very existence of an unconstitutional statute can sometimes give rise to the violation of the rights of an individual. So, even if a person has not been prosecuted under s.377A, that person can still bring an action to challenge the Constitutionality of the law.

All of these three cases are still alive. The decisions in the Hougang by-election case and the IMF case have been appealed against. Tan Eng Hong will go before the High Court for a determination on the constitutionality of s.377A.

Wednesday, December 26, 2012

Social media has been abuzz with questions relating to the role of Action Information Management Pte Ltd in the leaseback agreement with 14 PAP Town Councils. There have been suggestions by some netizens that there should be a CPIB investigation and other suggestions that AIM is but an example of profiteering at the expense of citizens.

Based on information that is so far available:

1. The 3 directors of AIM are PAP members. Two of those 3 are also shareholders of AIM
2. Dr Teo Ho Pin, the coordinating chairman is reported to have claimed that AIM is a PAP owned company. (technically, the company is owned by Chandra Das and Lau Ping Sum and not PAP, the political party.)
3. The company has a paid up capital of $2.
4. Dr Teo has stated that there was a tender process for the sale and leaseback of the computer systems and that only AIM made a bid even though there were 5 companies that collected the forms.
5. Dr Teo also confirmed that only the software was sold to AIM at $140,000 and the terms of the leaseback was for the Town Councils to pay $785 per month per Town Council.
6. Chandra Das (Director of AIM) has stated that he and his fellow directors do not receive any directors' remuneration.
7. It has also been confirmed that the original service provider (NCS) that developed and maintained the system for the 14 Town councils is still providing the services under the leaseback arrangement as AIM has engaged NCS to maintain and develop the system.

I am going to take all the facts above as true and accept Dr Teo and Mr Chandra Das' statements as true. In fact, I am going to give Mr Chandra Das the benefit of the doubt. Let us assume that the shareholders of AIM have not and will not be given any dividend. AIM has entered into a transaction that is clearly profitable. However, the Directors do not get any remuneration and the shareholders do not get any dividends. In such an arrangement, there is a potential for profits to accumulate year on year. What is going to be done with these profits eventually?

A quick calculation of the rate of returns has alerted many people to the possibility of profiteering by AIM. But, I do not think that this is an instance of profiteering. After all, AIM has engaged NCS to maintain and develop the system. In all likelihood, the $785 per month per Town Council is entirely channeled towards payments to be made to NCS as the service provider. There is a high probability that AIM (having, presumably, no skilled personnel or infrastructure) is a middle man that is not deriving any profit at all.

This is a leaseback arrangement that probably produces no profit for AIM and one where NCS continues to be the ultimate service provider at arguably more or less the same rate as before the leaseback. After accepting Chandra Das' assertion as true and giving further benefit of the doubt so as to remove any suggestion of impropriety, we have to render the leaseback agreement as a zero profit venture for AIM.

Why would a company go through a tender process and choose to make no profit at all unless there was some other purpose for the transaction? I suspect that this transaction had nothing to do with profiteering and everything to do with politicking. Nothing illegal. Just dirty politics.

The new contract with AIM containing the termination clause in the event of change in management was most probably intended to frustrate opposition parties in the event that a Town Council management ended up in the hands of the opposition. Given the fact that Town Council management runs parallel to the seats won by MPs, the possibility of a change in management is always going to be inevitable. The termination clause was probably inserted in anticipation of electoral defeat in some constituencies. Probably.

Anyway, for good measure, in order to eliminate the possibility of profits being made by AIM, I tried to do an online search through ACRA for the audited accounts of AIM. This is what I found:

The PAP has to come forward and give a proper detailed explanation on this whole transaction before the online speculations grow completely out of hand. As it stands there are questions being thrown around as to the propriety of the tender process and the profits possibly being made by AIM. With social media setting the agenda on this issue and MSM playing catch-up and the Town Councils and AIM being patchy with information, there is an urgent need for thorough explanation.

Tuesday, December 18, 2012

Palmergate is
yesterday’s news.Let’s move on.He’s human.He erred.He has resigned.This is now a personal issue for him to deal
with his family.What remains to be
sorted out is the vacant Parliamentary seat.Even though the current judicial interpretation of the Constitution
would result in a full discretion for the PM to decide whether or not to hold a
by-election in Punggol East, it would be politically prudent for the PM to call
for one in order to avoid the further hardening of moderate voters against the
PAP.

Amidst all
this, and amidst online discussion about the undesirably close (though not
necessarily improprietous nor unlawful) relationship between PA and PAP (with
Michael Palmer and Laura Ong providing the useful metaphor of being in bed with
each other), the Workers’ Party’s Sylvia
Lim has revealed that a certain Action Information Management Pte Ltd manages
the computing and financial system for PAP run Town Councils.This information has surfaced as a result of
Sylvia Lim’s public clarification as to the reason for delays in her Town
Council’s audited statements. The following is from her statement:

"After the GE
in May 2011, the Town Council was served with a notice that the Town Council’s
Computer and Financial Systems will be terminated with effect from 1 August
2011 due to material changes to the membership of the Town Council. This
Computer and Financial Systems had been developed jointly by the 14 PAP Town
Councils over a period of more than 15 months but was in January 2011 sold to
and leased back from M/s Action Information Management Pte Ltd, a company which
was dormant. This effectively meant that the AHTC had to develop its own
equivalent systems, in particular the Financial System, within a 2 months’
timeframe."

Sylvia Lim
has brought this information up in the context of explaining delays to the
audit of the Town Council.She does ask
the relevant question as to why the Computer and Financial System was sold to
Action Information Management (AIM).Although AIM director, S Chandra Das, has attempted to clarify that they
were willing to grant a further extension if requested, he has not stated
anything about how or why AIM was awarded this contract in the first
place.

At this point
in time we do not know what is the price for which the 14 PAP run Town Councils
sold their Computer and Financial Systems to AIM.

Let’s assume
that the System was valued at market value through an independent valuation
process and sold to AIM.AIM then leased
it back to the Town Councils.The Town
Councils will now be contractually bound to pay a price to AIM under the terms
of this leasing agreement.What is the
contracted price?Is there a profit
derived by AIM through the purchase by them of the System and the subsequent
lease back to the Town Councils?If so,
what is the amount of profit so derived?

Whilst it is
understandable that a Town Council might commission a third party to develop a
system, it is indeed strange that a system developed by a Town Council should
be sold to a third party only to be leased back to the Town Council.But, perhaps the third party might have had
particular skill and expertise that it could bring to bear in relation to the
system.If that were the case, what was
the specific skill and expertise that AIM brought with it in order to justify
this contractual arrangement.Sylvia Lim
claims that AIM was a dormant company.(The company’s registration number is 199103607Z.That would mean that it was incorporated in
1991.Perhaps it was operational for
some time.)

What was the
process by which AIM was awarded this sale and lease back contract?Was it done through a tender process?Considering that the directors of AIM are ex
PAP MPs, did the Town Councils invest in extra effort in going through a transparent
process in awarding the contract (so as to avoid inviting unwarranted
allegations of impropriety)?

On the
assumption that AIM derives no profit from the contract, why would a private
company want to enter into a contractual arrangement where it is not going to
benefit at all?That leads us to come up
with a grand conspiracy theory (which was probably what Sylvia Lim was hinting
at).Anticipating that PAP might lose
control of more constituencies at GE 2011 and therefore some Town Councils, the
Computer and Financial System might have been sold off to a third party with a
lease back arrangement.The contract
provided for termination by giving a month’s notice.In the
event that a Town Council management falls into the hands of an opposition
party, AIM’s services could be withdrawn by giving 1 month’s notice.There is nothing illegal about it.Just some old-style politics.The kind of politics that we hope to
eventually see the back of.

PAP leaders
have recently lamented the increasing polarization of Singaporeans and expressed
their wish that we don’t embrace divisive party politics.The problem is that it is the PAP’s
traditional approach of demonizing, maligning and disadvantaging opposition
parties that has caused a certain degree of anger and frustration amongst many
voters and led to the kind of online vitriol that we witness on and off.

Expecting civility in politics
would mean that one has to be civil in the first place.It is not too late.We can start afresh.We can start by looking at all the aspects of
our electoral and political system that creates a less than level playing field
and seek to change that.Right now, that
looks like a mammoth task.It may
involve a systemic overhaul.Many
citizens are arguably ready for it.But,
is there the political will or desire for it?

The Headline is "Punggol East back in the spotlight." The sub-headline reads: "Many residents aren't thinking of a by-election yet; they're still in shock over the loss of an MP who was clearly popular."

My first reaction in reading the sub-headline was to think that unfortunately most Singaporeans don't seem to appreciate the need for Parliamentary representation in a democracy.

As I read further, I came across the following:

"...for many of the residents, the thought of going to the polls again has not sunk in yet. They are still reeling in shock over the loss of an MP who was clearly popular among the residents."

The impression that was building in me was that a majority of Punggol East residents are uninterested in the issue of having a by-election. Further down in the article comes the following:

"Among the 30 residents TODAY spoke to, 13 felt that a by-election should be called within three months. Slightly more than half (16) felt that there was no rush, and one said there was no need to elect a new MP for the constituency."

Firstly, this is not a properly conducted survey. So, it is not going to be sufficiently representative of residents' sentiments and a wide margin of error must be accounted for.

I find the 'findings' made by TODAY to be rather amusing especially for the impression that they were trying to create. Clearly, by stating that 13 felt that there should be a by-election within 3 months and more than half felt that there was no rush, TODAY is brushing over a very important fact. Of the 30 persons interviewed, 29 actually thought that there is a need for a by-election. Only one person thought that there was no need to elect a new MP. If the information was presented in this way, it would not aid the overall impression that the PAP probably wants to create: that there is no necessity for a by-election and that municipal duties of the MP can be performed by an MP from a neighbouring constituency (and that many residents are not interested in a by-election).

TODAY's unscientific straw poll (after reading in between the lines) restores (in mymind at least) some faith in my fellow citizens. We are not about to roll over and play dead. Clearly, many want to see the Parliamentary vacancy filled. I expect that there is bound to be disagreement as to whether by-elections should be held as soon as within 3 months of the vacancy. But, only the hardcore PAP apologists would preach on the merits of an empty Parliamentary seat, the acceptability of an unrepresented Constituency and the disenfranchisement of about 31,000 voters.

Coming back to TODAY's article. This appears to be just part and parcel of the whole business of perception management: presenting information in a technically accurate but linguistically 'massaged' form to create the impression that there is not much public support for a by election.

Well, so long as you keep a healthy ability of not taking information at face value, you won't be caught in the matrix. (To put an opposite spin the information: 96% of Punggol East residents want a by-election. :-) )

Wednesday, December 12, 2012

The Speaker of Parliament and MP for Punggol East, Michael Palmer has resigned from his post as Speaker, his position as the member of Parliament and his membership in the PAP. It appears that he has had a relationship with a member of the Peoples' Association.

I had blogged earlier this year about the Yaw Shin Leong affair and my stance on the extra marital affairs and the duties and functions of elected representatives. I don't think that Parliamentarians and ministers should be judged on the basis of what goes on in their private lives. What is important is the way in which the public official conducts his duties. http://www.article14.blogspot.sg/2012/02/politics-of-affairs.html

Now that Palmer's seat is vacant, we again get to visit the question of whether a by-election should or would be held. After Yaw Shin Leong's resignation, several members of the PAP made public statements about how the calling of a by-election is entirely at the discretion of the PM. At that time, my view of the Constitutional provision on the filling of vacancies in Parliament was pretty much straightforward. Article 49 states that the vacancy "shall be filled by election" and that to me (and most observers) was clearly denying any discretion for the PM. The only discretion that he could have was to delay the time within which the by-election had to be called. http://article14.blogspot.sg/2012/02/by-election-when-not-whether.html .

However, the Vellama case that sought to obtain a determinative pronouncement on the interpretation of Art 49, has complicated matters somewhat. When the Hougang seat became vacant, the PAP leadership was getting heat from the people and also from the Court application. Eventually, it relented and called for a by-election. As it turned out, the High Court ruled against Vellama and the current legally affirmed interpretation is that the PM has discretion to decide whether and when to call a by-election. I disagree with the Court's reasoning in that case and I blogged about this a few days ago.

With Michael Palmer's resignation, there will be renewed calls for a by-election. There are already facebook postings calling for a by-election in Punggol. Workers Party (which was slow to comment on the SMRT drivers' strike) has already issued a comment on Palmer's resignation and called for by-elections to be held. The Worker's Party's facebook posting states:

"The Workers' Party has noted the announcement today that the Speaker of Parliament, Mr Michael Palmer, has resigned from the People's Action Party.

By virtue of Article 46 of the Constitution, Mr Palmer's Parliamentary seat for Punggol East Single Member Constituency (SMC) has become vacant.

In order that the residents of Punggol East SMC are properly represented, the Workers' Party urges the Prime Minister to call a by-election in the constituency as soon as possible.

In the last General Election, the Workers' Party contested Punggol East SMC. The Workers' Party is ready to offer a choice to the voters of Punggol East SMC again in the by-election."

The PAP government's reaction to calls for a by-election would be interesting to watch. Previously, without the benefit of the High Court judgment, they were already adament about the existence of a discretion. Now, it would be easy for the PM to hide behind the legal interpretation and state that there is no legal requirement for him to call for a by election.

But, what the PM must remind himself about is the fact that if indeed it is legally the PM's discretion, then politically he must exercise that discretion in a fair and reasonable manner in order not to contribute to a further reduction in the PAP's political capital. GE 2011 may seem like a distant memory to the political leadership of the PAP. They must remind themselves that part of the reason why they did not lose more of the popular vote was that an apology was extended midway through the election campaign. There must have been a sizeable number of voters that were swayed by the apology. But, 18 months after the general elections, people are beginning to get a sense that no major policy changes are lined up. There has been more of an attempt at perception management rather than genuine policy adjustment. I am sure that as we stand today the PAP has less political capital than it did during the general elections.

A decision by the PM not to call for by-elections at Punggol East would add to the loss of political capital. It is not prudent for the by-election to be postponed indefinitely. That would be one more issue for the opposition to raise at the next GE about the high-handedness of the PAP.

Of course, calling for a by-election at Punggol East represents a high risk for the PAP in terms of losing another seat in Parliament. Palmer won Punggol East with 54.54% of the vote. A vote swing of 5% would be needed for PAP to lose this seat. In the last GE, there were a few constituencies that witnessed vote swings of between 10% to 14% (e.g. Joo Chiat = 14%) against the PAP. But, that swing has to be seen in the light of the general election cycle (spanning 5 years) and the unusually strong anti-PAP sentiments on the ground. It is possible that this sentiment had already been fully milked during GE 2011 and in Punggol East today we might just see a marginal swing away from the PAP of 2% to 3%.

PAP could make the prudent calculation that there is a possibility of retaining Punggol East and at the same time coming across as not doing business as usual by doing the democratic thing: calling for by-elections. The ball is in your court Prime Minister.

(Meanwhile, Mdm Vellama's appeal in the Court of Appeal is still pending. Things could still play out very differently and the court could rule that a by-election is mandatory.)

Wednesday, December 05, 2012

It has been quite some time since the High Court delivered its judgment in the Hougang by-election case. I haven't found adequate time to read through the judgment in order to write about it. Thanks to a couple of hours of waiting time at the Hong Kong airport last month, I penned down a few quick thoughts. Finally, I have added some finishing touches and here it is. Better late than never, I guess.

Firstly, let me recall what I stated about the Constitutional position on vacancy of seats in Parliament in an earlier blog post way back in February this year:

"Anyone that states that a by-election in Hougang is not mandated by law is talking stark nonsense." http://article14.blogspot.sg/2012/02/by-election-when-not-whether.html

Now that the High Court has decided that "there is no requirement in the Constitution to call elections to fill elected Member vacancies" and that whether "to call or not to call an election to fill an elected Member vacancy is a decision to be made by the Prime Minister", I have to withdraw my rather extreme assertion. :-) I can't say that the court is talking stark nonsense, can I? (I might just go the way of the kangaroo t-shirt wearers)

Having read the judgment, I have to admit that it sets out a well-argued position. In any event, I still hold a view contrary to that expressed by the judge and I will explain this along the way and summarise it towards the end of this post.

Firstly, how does the judgment proceed?

For those that might be put off by the length of the judgment, the good news is that the first 19 pages of the judgment deals with a procedural point relating to the type of relief that can be claimed under specific provisions in the Rules of Court in judicial review cases. This is not relevant for those interested in the issue of whether the Prime Minister has the sole and unfettered discretion in deciding whether to call a by-election.

The main issue: "shall be filled by election"

Article 49(1) of the Constitution refers to the situation where a seat becomes vacant and stipulates that the vacancy "shall be filled by election". The High Court judge has rightly decided to situate the phrase within the context of other usages in the Constitution as well as the historical context of its usage.

Firstly, the judge presents the possible interpretation of "shall be filled by election" as being a reference to a process on the one hand or alternatively a reference to the event, i.e. the holding of an election. He spells it out as follows:

The word "shall" ordinarily means that whatever it is referring to is mandatory. However, what is being mandated by the word "shall" in Article 49(1) is not immediately clear, because "election" can mean either: (a) an event, in the sense of, "to hold an election"; or (b) a process, in the sense of, "by the process of election".

Proceeding on the assumption that there are two possible interpretations of the phrase "shall be filled by election", the Court assesses the historical origins of the phrase in Art 49(1). It is here that I believe that the judgment took a wrong turn. Working with his interpretation of the 2 meanings of the phrase ('to hold an election' and 'by the process of election'), it is clear that the judge has decided two possible outcomes although he doesn't expressly state that at that stage of the judgment. But, the net effect of the court's assumption is that the phrase is capable of giving rise to only two possible outcomes:

a) 'to hold an election' - where there is a vacancy, an election must be held

b) 'by the process of election' - where there is a vacancy, it may or may not be filled. But, if it is filled, then it must be through the process of having an election instead of some other process such as nomination.

I take the view that if we were to consider "shall be filled by election" to contain multiple meanings, then the following meaning could also be attributed to the phrase:

a) where there is a vacany, it must be filled and the filling of that vacancy must be by the process of election instead of any other process.

The judge analysed that the mandatory word "shall" could relate to either "election" as an event or "election" as a process. By associating "shall" with "election", the specific mode of reasoning deployed by the court is possible. But, the word "shall" is more naturally associated with the word "filled". What is mandatory in my view is the filling of the vacancy.

Let me draw an analogy with another situation to illustrate this point about linguistic usage and interpretation. Let’s assume that an instruction is communicated in the following form:

‘If this glass becomes empty, it shall be filled’

The mandatory word ‘shall’ is associated with the filling of the glass. No multiple meanings are possible.

Let’s try another form of this instruction:

‘If this glass becomes empty, it shall be filled by dipping into a pot of water’

Based on the interpretive approach adopted by the High Court, we could arrive at two possible meanings:

a)If the glass becomes empty, the glass must be dipped into a pot of water

b)If the glass becomes empty, then the filling of the cup must be done by dipping into a pot of water and not by any other means (such as pouring water from a kettle).

In the first interpretation, the mandatory shall is associated with dipping into the pot as an event that must occur.

In the second interpretation, the mandatory shall is associated with the dipping into the pot as a process so that the process is mandatory if, and only if, a decision to fill the empty glass has been made in the first place.

I venture that there is a 3rd interpretation that is highly consistent with the statement ‘if this glass becomes empty, it shall be filled by dipping into a pot of water.’:

If the glass becomes empty, the glass must be filled and the filling of the glass must be by dipping into a pot. The word shall is to be both associated with the mandatory requirement of ‘filling’ as well as the mandatory nature of the ‘process’ of filling.

It is this third possible interpretation that the Court had failed to address in its judgment and one that I feel should be properly raised during the appeal.

Whilst reading paragraph 60 and 61 of the judgment, I formed a disagreement in my mind over the dualistic approach presented by the court. But, I decided to suspend judgment until I read through the historical context that the court presented. After all, there could have been something in the historical context that indicated that the filling of the vacancy was not mandatory and only the process by which the filling took place was mandatory.

Up to paragraph 80 of the judgment, the judge took some effort to demonstrate the different processes by which vacancies are to be filled for different types of members of Parliament. We have Nominated MPs, Non-Constituency MPs and elected MPs. The Court demonstrated that the Constitution provided for different processes for the filling of vacancy of each type of seat in Parliament. This led the judge to come to the conclusion that the mandatory “shall” in Art 49 referred to the process.

“It is abundantly clear that a nominated Member can only be appointed and not elected. It is also clear that non-constituency Members can only be declared elected under the Parliamentary Elections Act. Accordingly, elected Member vacancies are to be filled only by election. It must therefore follow that the phrase “shall be filled by election” in Article 49(1) refers to the process whereby the vacated seats of elected Members are to be filled.”

I have to pause here again. I agree that the Constitution provides for different methods for the filling of a vacancy. But, the fact that there are different methods does not mean that the word “shall” in Art 49 related to process of filling the vacancy instead of the filling of the vacancy itself. Let me refer to section 4 of the Fourth Schedule to the Constitution:

4.—(1) Whenever the seat of a nominated Member has become vacant by reason of the expiry of his term of service, the vacancy shall, as soon as practicable, be filled by the President by making an appointment on the nomination of the Special Select Committee referred to in section 1. (2) Whenever the seat of a nominated Member has become vacant for any reason other than a dissolution of Parliament or the expiry of his term of service, the Special Select Committee may, if it thinks fit, nominate a person for the President to appoint as a nominated Member to fill the vacancy.

I have highlighted the words ‘shall’ and ‘may’ in sections 4(1) and 4(2) respectively. This provision deals with the NMP position.

Firstly:

When the NMP’s term of service expires, the President is required to fill it and in filling it the stipulated process is by nomination from the Special Select Committee and appointment by the President

Secondly:

When the NMP’s seat is vacant for some other reason (e.g. death), the President is not required to fill the vacancy. Instead, it is stated that the Committee may nominate a person for the President to appoint as NMP. Clearly, the absence of the words ‘shall be filled’ indicates that there is no mandatory requirement for the filling of the vacancy and only that there is a discretion as to whether or not it is filled and if it is to be filled the process of nomination by the Committee is to be followed.

It is clear from these provisions that the Constitution draws not only distinctions in terms of the process of filling a vacancy but also distinctions in terms of whether the filling should be done.

Where it is an NMP whose term has expired, the vacancy must be filled and the process of filling is stipulated as being by way of nomination.

Where it is an NMP whose seat has become vacant for other reasons, the filling of the vacancy is discretionary and if it is to be filled, then the process is provided for.

Where it is an elected MP whose seat has become vacant, then the vacancy must be filled and the process of filling that seat is by way of election.

I do not agree that the Constitutional provisions on the filling of Parliamentary vacancies lend credence to an interpretation that the mandatory ‘shall’ in Art 49 is to be associated only with the process of filling the vacancy. “Shall” has been used in the Schedule to the Constitution in relation to NMPs to indicate that the ‘filling’ is mandatory. Where the ‘filling’ is not mandatory, the word ‘may’ has been used. This structure lends more credence to an interpretation that wherever the word ‘shall’ has been used in relation to the filling of a vacancy, the filling as well as the process of filling would be mandatory.

The historical origins of Art 49

During the colonial period, our Legislative Assembly progressed from being Nominated House to a partially Nominated and partially Elected House. The High Court looked at this progression and referred to the Singapore Colony Order of 1955. I quote from the Judgment:

"95 Another significant feature of the 1955 Order was that it changed the mode of filling vacant seats in the Legislative Assembly. It no longer empowered the Governor to appoint Temporary Members to fill vacancies. Instead, depending on whether the vacant seat was one of a Nominated or Elected Member, sections 51(1) and 51(2) of the 1955 Order set out how each respective vacancy was to be filled. 96 Section 51 of the 1955 Order is the original source of Article 49(1) of the current Constitution. The exact wording of section 51 of the 1955 Order is crucial as it brings into clear light the meaning of Article 49(1) of the Constitution."

The 1955 Order: Filling of vacancies 51.—(1) Whenever the seat of a Nominated Member of the Assembly becomes vacant, the vacancy shall be filled by appointment by the Governor in accordance with the provisions of this Order. (2) Whenever the seat of an Elected Member of the Assembly becomes vacant, the vacancy shall be filled by election in accordance with the provisions of this Order.

The Judge added:

"97 It is immediately apparent that the expression “shall be filled by election” is common to both section 51(2) of the 1955 Order and the current Article 49(1) of the Constitution. Yet, there was no ambiguity in the meaning of the expression “shall be filled by election” in section 51(2) of the 1955 Order, because section 51(1) used the contrasting expression “shall be filled by appointment by the Governor”. Such an expression clearly meant that “election” in section 51(2) referred to a process and not an event, and the word “shall” in sections 51(1) and 51(2) of the 1955 Order mandated the process of filling the seat. In other words, under section 51(2) of the 1955 Order, whenever the seat of an Elected Member of the Assembly became vacant, the only process that could be used to fill that seat was by election and not by appointment. Subsequent constitutional provisions that originated from section 51(2) of the 1955 Order and containing the same expression have the same meaning unless the text was intentionally changed. 98 The expression “shall be filled by election” in Article 49(1) of the Constitution subsequently became obscure because the distinction between the processes of appointment and election in the 1955 Order was lost in subsequent Orders in Council and later, the Constitution. It is therefore important to follow the precise chain of events in our history to understand how and why this distinction became obscure."

The Judge then went on to explain how our legislature eventually became a fully elected body and the distinction in the two processes of filling vacancies became lost and “shall be filled by election” became obscure.

I beg to differ with the Court’s reasoning. The transition from from 1946 to 1955 was not merely a change in the composition of the legislative body and the method of replacing vacancies but also a transition from the discretionary ‘may’ to the mandatory ‘shall’. Whereas the 1946 order gave discretion to the Governor as to whether the vacancy was to be filled, the 1955 order stipulated that the vacancy ‘shall’ be filled (i.e. must be filled). Leaving aside the way in which Elected Members were to be dealt with, the clear difference in the way Nominated Members were to be treated is evident for all to see.

In the 1946 order, the Governor had an option to decide whether to fill the vacancy of any member. In the 1955 order, the Governor had to fill the vacancy (and in so doing was to use the process of appointment). Insofar as the Elected Members were concerned, the vacancy had to be filled and the process of filling was by way of election. This new provision used the mandatory ‘shall’. It is clear to me (especially with the contrast made with the 1946 Order) that the 1955 Order was intended to cause the filling of the vacancy to be mandatory as well as the process to be mandatory. In the case of Nominated Members, any vacancy had to be filled. In the case of Elected members, any vacancy had to be filled. For Nominated Members, the filling was by appointment and for Elected Members, the filling was by election.

Eventually, when our Parliament became a fully elected House, the distinction between Nominated and Elected MPs disappeared. However, that disappearance doesn’t obscure the meaning of the Article 49 of the Constitution. Article 49 still echoes the transition made from discretionary filling of a vacancy to the mandatory filling of the vacancy.

I’d like to go back to paragraph 95 of the Judgment:

“95 Another significant feature of the 1955 Order was that it changed the mode of filling vacant seats in the Legislative Assembly. It no longer empowered the Governor to appoint Temporary Members to fill vacancies. Instead, depending on whether the vacant seat was one of a Nominated or Elected Member, sections 51(1) and 51(2) of the 1955 Order set out how each respective vacancy was to be filled.”

If I were to modify this to reflect my interpretation, then my modification of it would be as follows:

'Another significant feature of the 1955 Order was that it changed the mode of filling vacant seats in the Legislative Assembly. It no longer gave the Governor discretion to appoint Temporary Members to fill vacancies. Instead, depending on whether the vacant seat was one of a Nominated or Elected Member, sections 51(1) and 51(2) of the 1955 Order set out that each respective vacancy had to be filled and in doing so the process of filling was by appointment for the former and by election for the latter.'

What transpires is that instead of assisting the Court's reasoning in seeing Art 49 of the Constitution as presenting a discretion in the filling of a vacancy, the legislative history indicates that Art 49's origins lay in the transition from a discretionary filling of vacancies to a mandatory filling of vacancies. The irresistable conclusion that should be arrived at is that Art 49 removes discretion from the Executive in the filling of the vacancy and the manner of filling the vacancy. What is left is the discretion to decide on the timing of the filling of the vacancy.

The Judge also traced the development from 1958 through our merger with Malaysia to the eventual split and in the process discussed the temporary insertion of the 3 month limit during merger and the removal of the limit after independence. This removal was debated in Parliament and was justified by the legislature. To me the fact that the 3-month limit for the filling of the vacancy was removed does not equate with introducing a discretion as to whether the vacancy should be filled. It merely introduces a discretion as to timing of the filling of the vacancy. The vacancy must be filled. It must be filled by election. But, the timing of the election is not fixed and is therefore discretionary. This would then give rise to the question of what is a reasonable period of time within which a by-election should be called.

Summary:

Contrary to the Court's interpretation that there are two possible meanings to the phrase “shall be filled by election” in Art 49 of the Constitution, I am of the opinion that if we were to get into the process of seeking multiple meanings in that phrase, then a comprehensive approach would be to accept that there are three possible interpretations:

a) an election must be held (event of 'election' must happen)

b) if the vacancy is to filled then it must be by way of election (process of filling must be by way of election).

c) the vacancy must be filled and filling must be by way of election. (event and process)

The 3rd interpretation is not only the linguistically most natural interpretation, it is also consistent with the arrangement of the provisions in the Constitution (where the word 'may' instead of the word 'shall' is used for the filling of NMP seats and should be contrasted with the word 'shall' for the filling of elected MP seats – the difference is not merely related to the process but to the very 'filling' of the vacancy itself). The 3rd interpretation is also consistent with the historical development of the elected members' seats in Parliament. The 1955 Order moved away from discretionary filling of vacancies to the mandatory filling of vacancies.

The “shall” in the 1955 Order as well as Art 49 of the current Constitution is in relation to the “filling” of the vacancy as well as the process of filling that vacancy.

The Vellama case has already become a Constitutional milestone by virtue of the High Court's decision to not order costs against her in view of the strong public interest that exists in the interpretation and application of Art 49. The most fundamental of all rights in a democracy is the right to vote. The case is now proceeding to the Court of Appeal. Hopefully, the Court of Appeal would create another milestone by interpreting the Constitutional provision in a restrictive manner to prevent the Executive from exercising excessive discretion.

It is an important feature of the rule of law that wherever possible governmental action must be governed by law. Where discretion exists, then it ought to be the duty of the Courts to apply the law restrictively so that the area of discretion is limited and the manner in which discretion is exercised is subject to scrutiny and oversight. The 3rd interpretation not only has (a) the merit of consistency with the arrangement of provisions in the current Constitution and (b) is historically traceable to the development of the 1955 Order, it is also (c) compatible with adopting a restrictive interpretation to prevent excessive discretion from being conferred on the Executive arm. Besides, it is also linguistically the most natural meaning of the phrase.

Whilst I agree that the interpretation adopted by the Court is not impossible, I suggest that it is less probable than what I have proposed as the 3rd interpretation. In any event, it is going to come down to interpretation and which way the Court of Appeal is likely to go is not going to be easy to predict.

If the Court of Appeal upholds the High Court's decision, then this issue has to be resolved through Constitutional amendment by Parliament. The opposition parties have to seriously consider whether they would want to make the issue of this Constitutional amendment a part of their manifesto in the next elections as the right to vote is too fundamental to be given away simply because of a lack of clarity in the provision.

About Me

I blog primarily about the law & politics in Singapore, occassionally veering off into socio-economic issues. Article 14 of the Singapore Constitution protects the Freedom of Speech, Expression,Peaceful Assembly and Association. But, there are excessive restrictions on these Freedoms. I hope that I can, in my small way, contribute to the gradual realisation of these Freedoms in our land